STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DUSTIN C DEYO, Employee

DELUXE PLASTICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04400373AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked four months for the employer through a temporary help agency. He then worked about a year for the employer.

On November 26, 2003, the employer sent the employee a letter notifying him that he did not provide proper identification as required to complete a required I-9 form. The employee told the employer that his mother had his social security card and had moved to the State of Washington, so it would take sometime to retrieve it. On December 9, 2003 (week 50) the employer called the employee asking if he had received the information they had requested. The employee told them that his mother was having surgery but that the information "should be on its way at anytime." At that point, the employer told the employee he should have received the information by then, and because he had not supplied it to the employer, he had to resign his position. He refused to resign. The employer informed him that it was required by law that he provide the information and because he had not, he had resigned.

The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. Employers are required to complete an employment eligibility verification form (I-9) for all employees, including U.S. citizens. An employer who discovers that an I-9 form is not on file, must terminate the employment of any employee who does not provide the requested documentation or risks being subject to penalties for knowingly continuing to employ an unauthorized worker if the individual is not in fact authorized to work.

The employee failed to provide the employer information required by law. The employee's failure made him unavailable for work. The employer terminated the employee's employment because he was unavailable for work. Pursuant to Wis. Stat. § 108.04(1)(b)1., the employee is ineligible for benefits while he is unavailable for work. The employee has not demonstrated that he has documentation readily available to present to a prospective employer that would allow him to be employed in the United States. The employee cannot be considered available for work until he demonstrates to the department that he can provide a prospective employer the documentation required by law.

The commission therefore finds that in week 50 of 2003, the employee's employment was terminated by the employer because the employee was unavailable for suitable work pursuant to Wis. Stat. § 108.04(1)(b)1., and that he was not available for work within the meaning of that section.

The commission further finds that the employee was paid benefits in the amount of $2,922.00 for weeks 50 through 52 of 2003, and weeks 1 through 15 of 2004, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 50 of 2003, and until he is available for work. He is required to repay the sum of $2,922.00 to the unemployment reserve fund.

Dated and mailed June 10, 2004
deyodus . urr : 132 : 1 : AA 220

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal is based on the employee's undisputed testimony at the hearing.

The employer states in his petition that it was not told that it had to appear at the hearing. However, the hearing office's notation of the employer's contact with the hearing office reflects that the employer was told that if did not appear the decision would be based on evidence presented at the hearing by the employee.


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